People v DeVecchio

[*1] People v DeVecchio 2007 NY Slip Op 51962(U) [17 Misc 3d 1114(A)] Decided on October 12, 2007 Supreme Court, Kings County Reichbach, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 12, 2007
Supreme Court, Kings County

The People of the State of New York,

against

R. Lindley DeVecchio, Defendant



6825/05



For the Prosecution:

Michael Vecchione, Esq.

Joseph Alexis, Esq.

Kings County D.A.'s Office

350 Jay Street

Brooklyn, NY 11201

For the Defense:

Douglas Grover, Esq.

Mark Bederow, Esq.

Thompson Hine LLP

335 Madison Avenue

New York, NY 10017

Gustin L. Reichbach, J.

A week before jury selection was scheduled to begin in this long-delayed trial charging a former supervising agent of the FBI with criminal liability for four organized crime homicides, the District Attorney, citing newly discovered evidence, moved to disqualify defendant's attorney because of the District Attorney's intent to call counsel as a prosecution witness in its case in chief. Defense counsel has represented the defendant from the onset of this case, indeed, he began representing the defendant 13 years earlier in connection with an internal FBI investigation, (hereinafter "OPR"), details of which will be relevant in the instant trial. That OPR investigation involved allegations of an improper relationship between the defendant and his long-time paid FBI informer and Columbo crime family soldier, Greg Scarpa. While focused on different specific allegations of misconduct, this case and the prior OPR investigation both involved the common allegation of an inappropriate relationship between the defendant and Scarpa. The OPR investigation was closed without an adverse finding against the defendant, who was subsequently allowed to retire from the FBI.

Central to the allegations against the defendant in the present case is the testimony of [*2]Linda Schiro, the long-time paramour of Gregory Scarpa. In this case, as in most criminal cases, the credibility of this important witness against the defendant will be an issue of central importance.

The District Attorney premises his intent to call the defense attorney as a prosecution witness on the claim that during the course of the prior OPR investigation, defense counsel conducted an interview with Linda Schiro and allegedly advised her not to cooperate in the OPR investigation. The prosecution argues that as a consequence, the defense attorney needs to be called as a witness to corroborate Linda Schiro's testimony regarding the defendant's attempts to induce her non-cooperation with OPR. Such conduct, it is asserted, constitutes evidence of the defendant's guilty conscience.

It is reasonably anticipated that at trial the defendant will seek to undermine the credibility of Linda Schiro by contrasting statements that she made to the OPR investigation in 1994 and those that she made 11 years later before the Kings County Grand Jury in 2005, the latter of which she will presumably repeat at the trial. When asked about these discrepancies during her testimony before the Grand Jury which indicted the defendant, Schiro explained that at the time of the OPR investigation, she was confused and uncomfortable with the fact that the FBI seemed to be investigating itself. She did not, at that time, mention any meeting with defense counsel. It is presently anticipated that Linda Schiro will testify to contacts between herself and the defendant and his attempts to persuade her not to cooperate with the OPR investigation. In addition to Schiro, it was revealed at a pre-trial hearing in this case that Schiro's husband at the time, John Baran, will also testify that he met directly with the defendant as an intermediary carrying messages from the defendant to Schiro, similarly urging her not to cooperate. At the time of the Grand Jury appearance in 2005, John Baran testified before the Grand Jury regarding defendant's attempts to influence Schiro, though no mention was made of this meeting with defense counsel, which he now asserts took place in connection with the instant motion. This meeting would appear to have been of so little significance to Schiro that it was only within the past ten days that she brought it to the People's attention.

Resolution of this motion to disqualify necessarily involves a determination whether or not such testimony would be admissible at defendant's trial and thus implicates balancing the probative value of such testimony with its prejudice to defendant's right to a fair trial. See, People v. Molineaux, 168 NY 264 (1901).

Defense counsel who, as noted, was also representing the defendant in connection with the OPR investigation in 1994, acknowledges that he met and spoke for two hours with Schiro about the testimony she had given before OPR. By the time of this meeting, Schiro had already given her two statements to OPR and she was not, after meeting with counsel, further interviewed nor did she provide additional information to OPR. As the DA acknowledges, it would defy the laws of physics to suggest testimony given during her OPR interview could be influenced or directed by meeting with defense counsel after the fact. Thus, counsel's purported design to convince Schiro not to cooperate with OPR had no actual effect because her testimony had already been concluded. Instead, the District Attorney seeks to introduce counsel's testimony of this purported attempt to influence Schiro's non-cooperation with OPR as evidence of defendant's "guilty conscience," by his attempt to thwart the investigation.

While counsel interviewing a witness personally in the absence of an additional witness may be imprudent, the Court finds nothing inappropriate nor remarkable about an attorney investigating a case on behalf of his client. Witnesses do not belong to any party and each side [*3]in our adversary system has the right, indeed the obligation, to learn as much about the case as they can while acting in a professional and ethical manner. If that was the only basis for the People's application it would be denied summarily since evidence of such investigation would be irrelevant. But beyond merely meeting and interviewing the witness, the People have submitted an affidavit in which Schiro claims that defense counsel urged her not to cooperate with the OPR investigation. Defense counsel vigorously denies that he in any way suggested that the witness not cooperate and otherwise argues that his conduct was appropriate.

For purposes of this decision, it is not necessary for the Court to resolve this factual dispute. Even accepting the facts as alleged by the People, the court would not and will not permit any testimony of defense counsel's meeting with Linda Schiro which occurred after her statements to OPR had been concluded. As a purported prior bad act and evidence of consciousness of guilt, the Court is called upon to balance the probative value of such evidence against its prejudicial effect. The high level of prejudice is self-evident. Defense counsel has a long-standing relationship with the defendant and has submitted voluminous legal papers, and has spent numerous days in hearings on various pre-trial motions in this case. The Sixth Amendment right to counsel is the linchpin of our constitutional framework; the amendment that ensures the enforcement of all the other rights in the Bill of Rights. While the right to counsel does not always mean the right to a particular counsel, and in compelling circumstances a lawyer may be removed as defendant's counsel despite the wishes of the defendant, removal of defendant's chosen counsel is a drastic step. On the other side of the equation, the Court finds that the evidence which the District Attorney seeks to elicit by disqualifying defendant's counsel and calling him as a witness involves a disputed issue of fact on a collateral issue, the exclusion of which will not seriously impact on the People's case. The People will be permitted to present evidence of the defendant's alleged direct attempts to influence witnesses in regards to the OPR investigation. To the extent that such evidence is arguably probative of the defendant's consciousness of guilt, it must be remembered that the jury will be instructed, that evidence of consciousness of guilt is "of slight evidentiary value" and that "even a person who is innocent of a crime may do things that give the appearance of guilt." CJI 9.16. To permit the District Attorney to call defense counsel to deny that he had made such opportunings to the witness would involve this Court in a mini-trial within the trial. The proposed evidence, if believed, would support an agency theory of consciousness of guilt where even direct evidence on this issue is of slight evidentiary value.

The People's motion to disqualify defense counsel is denied. The People will be permitted to offer evidence of the defendant's own purported acts to impede the investigation, but will not be permitted to elicit from its own witnesses any testimony regarding meetings with defense counsel.

This constitutes the Decision and Order of the Court.

_______________________

Gustin L. Reichbach

J.S.C.